COLLEGESOURCE, INC. v. ACADEMYONE, INC.

Filing 66

MEMORANDUM AND/OR OPINION RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. NO.41). SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 4/22/2011. 4/22/2011 ENTERED AND COPIES MAILED, E-MAILED.(kk, ) Modified on 4/22/2011 (kk, ).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COLLEGESOURCE, INC.

CIVIL ACTION

v.
ACADEMYONE, INC., et al.

NO. 10-3542
MEMORANDUM

McLaughlin, J.

April 22, 2011

This case involves two companies that provide online
college transfer services.

The plaintiff CollegeSource has

accused the defendant AcademyOne of republishing course catalogs
and course information that CollegeSource digitized and made
available to its customers.

These companies use course

descriptions from academic institutions to facilitate transfer
agreements between schools and to help users determine whether
courses at different institutions are equivalent.
The plaintiff seeks a preliminary injunction under
theories of breach of contract, unjust enrichment, and false
advertising.

CollegeSource asserts that AcademyOne breached

CollegeSource's Terms of Use by republishing course descriptions
taken from CollegeSource's course catalogs or alternatively that
AcademyOne has been unjustly enriched.

CollegeSource also

accuses AcademyOne and its CEO David Moldoff of false advertising
by sending a letter containing false statements to various
academic institutions under the guise of a freedom of information

request.

CollegeSource seeks to enjoin the defendants from using

course descriptions obtained from the plaintiff's course catalogs
and to require the defendants to issue corrective advertising
regarding the freedom of information letters.
The Court concludes that the plaintiff has failed to
satisfy its burden that it is entitled to a preliminary
injunction.

The Court first concludes that the plaintiff has not

shown that it will suffer irreparable injury in the absence of an
injunction for its breach of contract and unjust enrichment
claims.

The Court also concludes that the plaintiff has failed

to show a likelihood of success on the merits of its false
advertising claim because the statements in the freedom of
information letters are at least ambiguous and there has been an
insufficient showing of consumer confusion.

The Court will

therefore deny the plaintiff's motion.

I.

Procedural History
On July 20, 2010, the plaintiff initiated this law suit

and filed for a temporary restraining order to preserve evidence
on AcademyOne's computers.

On August 3, 2010, the Court denied

the plaintiff's motion and instructed both parties not to destroy
any potentially relevant information.

On October 19, 2010, the

defendants moved to dismiss several counts of the plaintiff's
amended complaint.

On December 6, 2010, the plaintiff filed the

2

instant motion for preliminary injunction.
On January 241 2011 1 the Court held a preliminary
injunction hearing and on January 26
the plaintiff's motion.

2011 held oral argument on

1

At the hearing 1 the Court heard live

testimony from Kerry Cooper, CEO of CollegeSourcei Stanley Novak,
Director of Operations for CollegeSourcej David StanelYI Manger
of Implementation for AcademyOnej and David Moldoff, CEO of
AcademyOne.

The deposition testimony of Harry Cooperl the

founder of Career Guidance Foundation, was also incorporated into
the record.

The plaintiff filed proposed findings of fact and

conclusions of law on February 171 2011 and the defendant filed
proposed findings of fact and conclusions of law on February 22,
2011.
This case is related to two previously filed lawsuits.
See AcademyOne, Inc. v. CollegeSource, Inc'
5184491 (E.D. Pa. Dec. 21, 2009)
Inc. v. AcademyOne, Inc'

l

l

(Padova, J.)

No. 08-1987

75513 (S.D. Cal. Aug. 24, 2009).

1

No. 08 5707, 2009 WL
i

CollegeSource,

2009 U.S. Dist. LEXIS

In the Pennsylvania case before

Judge Padova, the Court granted CollegeSource/s motion for
summary judgment on AcademyOne/s claims of false advertising,
trademark infringement

1

and cybersquatting.

AcademyOne, Inc. v.

CollegeSource, Inc., No. 08 5707, 2009 WL 5184491, at *7, *16-*17
(E.D. Pa. Dec. 21, 2009).

In the California action

l

the District

Court concluded that it lacked personal jurisdiction over

3

AcademyOne for claims similar to those brought in this lawsuit.
CollegeSource, Inc. v. AcademyOne, Inc., No. 08 1987, 2009 U.S.
Dist. LEXIS 75513, at *20-21 (S.D. Cal. Aug. 24, 2009).

The

plaintiff's appeal is currently pending before the United States
Court of Appeals for the Ninth Circuit.

See CollegeSource, Inc.

v. AcademyOne, Inc., No. 09-56528 (9th Cir.).

II.

Findings of Fact
A.

Background
1.

CollegeSource and AcademyOne both provide course

information services to higher education organizations.
2.

CollegeSource is the successor in interest to the

non-profit Career Guidance Foundation ("CGF"), which was founded
in 1971.

(Verified Compl.
3.

~

5.)

AcademyOne was founded in 2004.

(Notes of

Testimony, Evidentiary Hearing, January 24, 2011 ("N.T.") 114:2­
5.)

4.

Since approximately 1992, CGF and later

CollegeSource have digitized college catalogs and offered them in
various formats.

(H. Cooper Dep. 39:2-24, 41:22-42:11; N.T.

197:4-19.)
5.

Beginning in 1996, CGF began offering digitized

course catalogs on the Internet.
6.

(H. Cooper Dep. 42:12-18.)

CollegeSource offers PDF versions of whole college

4

course catalogs online through its product "CollegeSource
Online."

(N.T. 22:2-10i 87:16-23.)
7.

CollegeSource offers another product called

Transfer Evaluation Service ("TES

fI

),

which is primarily marketed

to institutions seeking information regarding the transfer of
credits from one institution to the other.

(N.T. 22:2 lOi

47:7-11.)
8.

In mid-2005, AcademyOne developed two products:

the National Course Atlas and the Course Equivalency Management
Center ("CEMC").
9.

(N.T. 119:2 17.)

AcademyOne's National Course Atlas provides a

catalog of current course information at educational
institutions, which is used for comparing the academic
equivalence of courses at different institutions.

(N.T.

114:9-116:23; 118:2-119:21; Def.'s Exs. 38, 39.)
10.

AcademyOne's CEMC is an online program that allows

academic institutions to create and centralize transfer
agreements and policies using the National Course Atlas.

It is

used to help faculty map out the courses that would go into a
transfer agreement in a proactive fashion.

B.

(N.T. 120:25-121:20.)

Course Catalogs
11.

Over the past sixteen years, CollegeSource has

accumulated more than 39,000 digital course catalogs.

5

(N.T.

42:20-43:1.)

12.

CollegeSource acquired these course catalogs by

contacting individual colleges and requesting copies of their
catalogs.

(N.T. 49:21-22; 202:14-203:09.)
13.

CollegeSource obtained permission to use their

catalogs by contacting colleges directly.

CollegeSource did not

present evidence that it has any formal contracts or licensing
agreements with any colleges or universities for the distribution
of course catalogs.
14.

(N.T. 205:16-22.)

Colleges and universities provide CollegeSource

with either electronic or paper copies of their course catalogs.
CollegeSource scans paper catalogs and processes the scanned
images using optical character recognition (-OCR").

(N.T. 78:14­

79:9.)
15.

CollegeSource formats the electronic catalogs it

receives as well as the scanned/digitized catalogs with a uniform
cover (-splash page").

CollegeSource also makes the data

searchable and appends its Terms of Use to each catalog.

(N. T.

32:7-11; 67:12 68:1.)
16.

All of the catalogs that CollegeSource has either

scanned or electronically converted contain Terms of Use that the
information may only be used for personal use and that data may
not be displayed for use on another website or service.
50:4-6; PI.'s Ex. 3.)

6

(N. T.

17.

The following Terms of Use appear in the catalogs

in CollegeSource's collection:
Copyright & Disclaimer Information
Copyright © [1994 -2007] .
CollegeSource® and Career Guidance Foundation
CollegeSource® digital catalogs are
derivative works owned and copyrighted by
CollegeSource®, Inc. and Career Guidance
Foundation. Catalog content is owned and
copyrighted by the appropriate school.
While CollegeSource®, Inc. and Career
Guidance Foundation provides [sic]
information as a service to the public,
copyright is retained on all digital
catalogs.
This means you may NOT:
*
distribute digital catalog files to
others,
*
"mirror" or include digital catalog
files on an Internet (or Intranet) server,
*
modify or re-use digital catalog
files without the express written consent of
COllegeSource® and Career Guidance Foundation
and the appropriate school.
You may:
*
print copies of the information for
your own personal use,
*
store the files on your own
computer for personal use only, or
*
reference this material from your
own documents.
CollegeSource® and Career Guidance Foundation
reserves [sic] the right to revoke such
authorization at any time, and any such use
shall be discontinued immediately upon
written notice from CollegeSource ® and
Career Guidance Foundation.
( Pl. ' s Ex.

3.)

18.

In 2006, AcademyOne began collecting course

7

descriptions and college catalogs for the National Course Atlas
and the CMEC.

(N.T. 114:25-116:15, 127:13-14; Stanley N.T.

5:12-6:5;1 Def.'s Ex. 32.)
19.

Approximately 80 schools directly provided course

data to AcademyOne.
20.

(Stanley N.T. 6:6-13.)

AcademyOne also collected course descriptions by

visiting the websites of approximately 4,000 colleges and
universities.

Many of these catalogs were collected by

AcademyOne's Chinese contractor, Beijing Zhongtian-Noah Sports
Science Co., Ltd.
21.

("Noah").

(Stanley N.T. 5:12-9:17; 42:19-25.)

About half of the 4,000 schools post course

descriptions on their website in HTML format.

The schools that

did not post HTML versions of their course descriptions post them
as PDF files.
22.

(Stanley N.T. 7:16-9:3.)
Noah downloaded approximately 18,000 PDF files

from the websites of colleges and universities.

(Stanley N.T.

7:2-9; N.T. 123:16 23.)
23.

CollegeSource conducted an investigation and found

approximately 680 catalogs that were digitized or converted by
CollegeSource on AcademyOne's www.collegetransfer.net website,
all with Terms of Use intact.

(N.T. 31:9-32:2,35:21-36:6;

88:20-91:2; Pl.'s Ex. 13.)
1
The preliminary injunction testimony of David Stanely
is contained in a separate transcript from the rest of the
preliminary injunction hearing. The Court will refer to the page
numbers for Mr. Stanely's testimony as "Stanley N.T."

8

24.

Some of the 680 catalogs may have been downloaded

by Noah because some colleges and universities re-direct or
-back-link" to CollegeSource's collection of PDF catalogs or
because the colleges and universities posted copies of
Collegesource's catalogs directly on their own website.

(N.T.

125:19-126:7.)

C.

Catalog Licensing and Publication
25.

On October 4, 2005, AcademyOne Vice President Ed

Johnson emailed CollegeSource sales representative Dave Hunt and
requested a quote for licensing CollegeSource's catalogs in
electronic form.
26.

(N.T. 22:16-25; Pl.'s Ex. 1.)

AcademyOne made additional contacts to license

these catalogs through January, 2006.

(N.T. 24:5-23; Pl.'s Exs.

2, 5.)

27.
Compl.

~

CollegeSource denied these requests.

(Verified

38.)
28.

In April of 2007, CollegeSource became aware that

AcademyOne had posted course catalogs bearing CollegeSource's
logos and Terms of Use to AcademyOne's www.collegetransfer.net
website.

(N.T. 55:13-17; 84:8 15.)
29.

On or around April 20, 2007, CollegeSource's CEO,

Ms. Cooper, hand-delivered a cease and-desist letter to
AcademyOne's CEO, Mr. Moldoff at a conference they were both

9

attending.

(N.T. 36:21-37:1.)
30.

In the letter, CollegeSource indicated that

AcademyOne had posted PDFs created by CollegeSource on
AcademyOne/s website in violation of several laws including the
Copyright Act of 1976.

CollegeSource demanded that AcademyOne

remove any CollegeSource material from its website.
14.)
31.

In response to the plaintiff's cease and desist

letter, AcademyOne removed the links to every PDF file of a whole
course catalog on its website.

However, the actual PDF files

themselves were not immediately removed.
the PDF files would not have been visible.

To a normal visitor

l

A visitor who had the

direct URL of the PDF catalogs, however, would still be able to
access the catalogs directly.
32.

(N.T. 123:24-125:2.)

A few months later in mid-2007, AcademyOne also

removed the PDF files of every whole catalog from its servers and
deleted the feature allowing users to access course catalogs.
(N.T. 126:8-127:1.)
33.

The 680 whole catalogs in question have not been

in AcademyOne's database since mid-2007.

AcademyOne does,

however, retain computer backup and litigation copies of the
files at issue in compliance with its litigation obligations.
(N.T. 127:2-4; 129:10-130:19.)
34.

Between April 2007 and April 2010

10

1

Noah

re collected course descriptions from college and university
websites.

(Stanley N.T. 9:1-17)
35.

During this time, AcademyOne instituted new

protocols to safeguard against downloading PDFs from
CollegeSource.
36.

(Stanley N.T. 9:18-10:11)
Specifically, AcademyOne instructed Noah not to

download PDFs from a CollegeSource Internet address.

(Stanley

N.T. 9:18 10:11)
37.

In addition, AcademyOne instructed Noah to provide

it with the list of the Internet addresses from which it had
obtained catalogs or course descriptions.

(Stanley N.T.

9:18-10:11)
38.

AcademyOne then checked each of those addresses to

ensure that they were not a CollegeSource webpage.

{Stanley N.T.

9:18 10:11)
39.

When CollegeSource initiated this law suit in July

2010, AcademyOne learned that, despite the safeguards
implemented, it had posted course descriptions from two course
catalogs that may have been from CollegeSource's website.
(Stanley N.T. 10:18-12:2; Def.'s Exs. 29-31.)
40.

CollegeSource identified course descriptions on

AcademyOne's website from the University of Illinois at
Urbana-Champaign and North Greenville University as originating
from CollegeSource's catalogs.

(N.T. 11:24 12:3)

11

41.

AcademyOne removed these course descriptions and

all other course descriptions for the University of Illinois at
Urbana-Champaign and North Greenville University after becoming
aware of the issue.
42.

(Stanley N.T. 16:24-17:14)

After CollegeSource filed this lawsuit, AcademyOne

also took steps to address CollegeSource's claim that AcademyOne
was continuing to copy course descriptions from PDFs of whole
course catalogs that AcademyOne removed from its website and
servers in April 2007.
43.

(Stanley N.T. 10:18-16:23)

AcademyOne removed from its website every course

description that it uncovered from its own investigation that
might be derived from CollegeSource's materials.

(Stanley N.T.

17:12-14; Def.'s Ex. 1)
44.

AcademyOne compiled a list of descriptions to

remove by searching for "CollegeSource" and "Career Guidance
Foundation" in all of the source documents for the data that Noah
collected.

(Stanley N.T. 18:5 20:16; Def.'s Ex. 1.)
45.

AcademyOne has since reposted course descriptions

for certain schools after verifying that the course descriptions
were derived from sources other than CollegeSource.

(Stanley

N.T. 20:17-21:7)
46.

When CollegeSource filed its motion for

preliminary injunction on December 6, 2010, CollegeSource
provided AcademyOne with a list of the 680 catalogs it believed

12

were derived from CollegeSource's catalogs.

(Stanley N.T.

21:13-18)
AcademyOne removed the course descriptions for all

47.

schools whose catalogs were on this list but not already taken
down in September 2010.
48.

(Stanley N.T. 21:13 23)

There is no evidence that course descriptions from

the 680 catalogs currently appear on AcademyOne's website or in
its database.

D.

(Stanley N.T. 19:12-22:21)

Freedom of Information Letters
49.

In July 2010, David Moldoff sent letters to public

colleges and universities under applicable state freedom of
information or "sunshine" laws ("FOI letters").

(N.T. 131:2-23;

De f . 's Ex. 44.)
50.

These FOI letters requested any copies of any

correspondence, emails or contractual agreements between the
academic institution and CollegeSource that grant CollegeSource
or the Career Guidance Foundation the authority to create and
claim a derivative copyright of the institutions' printed or
digital catalogs or add CollegeSource's various enhancements to
the catalogs.
51.

(N.T. 131:2-23; Def.'s Ex. 44.)
The purpose of the FOI letters was to determine if

any such agreements or licenses exist.
52.

(N.T. 133:2 136:25.)

Every college or university that responded to

13

AcademyOne's request indicated that there are no agreements
giving CollegeSource the right to restrict the use of the course
descriptions created by the schools.

(N.T. 137:1-2-139:20;

Def.'s Exs. 45/ 47-49.)
53.

David Moldoff was the author of these letters and

is not an attorney.
54.

(N.T. 111:21-114:4, 131:9-13.)

In response to the FOI letter/ CollegeSource

received questions from academic institutions regarding the
content of the letter.

One of CollegeSource's clients asked

CollegeSource to remove the institution's catalog from
CollegeSource's collection.

(N.T. 52:5-53:14.)

III. Analysis
The plaintiff seeks an injunction on the basis of
breach of contract, unjust enrichment, and false advertising.
The plaintiff seeks to enjoin AcademyOne from using information
derived from its course catalogs and to take corrective
advertising measures.
A party seeking a preliminary injunction must show:
"(1) a likelihood of success on the merits;

(2) that it will

suffer irreparable harm if the injunction is denied;

(3) that

granting preliminary relief will not result in even greater harm
to the nonmoving party; and (4) that the public interest favors
such relief."

Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700,

14

708 (3d Cir. 2004).

The movant bears the burden of establishing

every element in its favor.

See P.C. Yonkers, Inc. v.

Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504,
508 (3d Cir. 2005).

The grant of a preliminary injunction is an

"extraordinary remedy" that should be granted only in "limited
circumstances."

A.

Kos, 369 F.3d at 708 (citation omitted) .

Breach of Contract and Unjust Enrichment
CollegeSource seeks injunctive relief because of the

purported continuing use of course descriptions gathered from
CollegeSource's catalogs in violation of the plaintiff's Terms of
Use.

CollegeSource contends that AcademyOne has breached a

contract with CollegeSource by violating CollegeSource's Terms of
Use.

In the alternative, CollegeSource argues that even if

AcademyOne has not breached an enforceable contract, AcademyOne
has been unjustly enriched.
The Court first addresses the irreparable injury
requirement.

To obtain injunctive relief t the plaintiff must

make a clear showing of "immediate irreparable injurylt or a
"presently existing actual threat."
40 F.3d 645, 655 (3d Cir. 1994)

Acierno v. New Castle Cnty.t

(citations and quotations

omitted).

An injunction is not appropriate when damages are

adequate.

Frank's GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847

F.2d 100, 102 {3d Cir. 1988}

("a purely economic injury,

15

compensable in money, cannot satisfy the irreparable injury
requirement").

The preliminary injunction must be the only way

of protecting the plaintiff from harm.

Instant Air Freight Co.

v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)
CollegeSource presented evidence that AcademyOne
displayed course information from 680 course catalogs that may
have originated from CollegeSource's catalogs at the time this
law suit was filed.

However, AcademyOne has removed from its

website and databases every course description from every school
on the list of 680 schools.

David Moldoff, CEO of AcademyOne,

testified that AcademyOne has not replaced any course description
for the 680 schools until it has confirmed that the description
came from a source other than CollegeSource.
The plaintiff has expressed concern that without an
injunction, nothing would prevent AcademyOne from re-posting
information that was originally gleaned from CollegeSource's
digitized catalogs.

The Court finds this contention unpersuasive

because AcademyOne has complied with CollegeSource's take-down
requests.

AcademyOne has removed all of the materials that the

plaintiff cited as potentially derived from CollegeSource as well
as instituted procedural safeguards to reduce the likelihood that
AcademyOne will publish course descriptions from CollegeSource's
catalogs in the future.

2

Furthermore, the timing of the plaintiff's motion also
undermines its claim of irreparable injury.
CollegeSource
2

16

There does not appear to be any "presently existing
actual threat" that the plaintiff may suffer irreparable harm if
it is not granted a preliminary injunction on its breach of
contract and unjust enrichment claims.
655.

See Acierno, 40 F.3d at

The plaintiff has presented evidence of, at most,

possibility of a remote future injury."

Id.

"a

Because the Court

concludes that the plaintiff has not shown that it will suffer
irreparable injury in the absence of an injunction for its breach
of contract and unjust enrichment claims, the Court does not need
to address the remaining preliminary injunction factors.

See

Yonkers, 428 F.3d at 508 ("The burden lies with the plaintiff to
establish every element [for a preliminary injunction] in its
favor . .

.").

The Court next turns to the plaintiff's false

advertising claim.

B.

False Advertising
CollegeSource seeks injunctive relief in the form of

corrective advertising regarding the freedom of information
letters that AcademyOne sent to colleges and universities.
Section 43(a) of the Lanham Act provides creates a cause of
initially brought its complaint in the California action in 2008.
See CollegeSource, Inc. v. AcademyOne, Inc., No. 08-1987, 2009
U.S. Dist. LEXIS 75513 (S.D. Cal. Aug. 24, 2009). The complaint
in this case was filed on July 20, 2010. However, it was not
until December 6, 2010, that the plaintiff filed this motion for
preliminary injunction. The Court also notes that any injury the
plaintiff has suffered for breach of contract or unjust
enrichment may be remedied by damages, if appropriate.
17

action for false advertising.

15 U.S.C.

§

1125(a).

There are

two different theories of recovery for false advertising under
section 43(a).

A defendant may be liable for false advertising

if the commercial statement is either (1) literally false or (2)
literally true or ambiguous, but has the tendency to deceive
Novartis Consumer Health, Inc. v. Johnson &

consumers.

Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 586 (3d Cir.
2002) .
The United States Court of Appeals for the Third
Circuit has held that survey evidence that 15% of the respondents
were misled was sufficient to establish "actual deception or at
least a tendency to deceive a substantial portion of the intended
audience."

Id. at 594 (citation omitted).

See also Sara Lee

Corp. v. Kayser-Roth Corp., 81 F.3d 455, 466-67 & n.15 (4th Cir.
1996)

(15-20% confusion was sufficient to establish "actual

confusion .

. to a significant degree")

i

Goya Foods, Inc. v.

Condal Distribs., Inc., 732 F. Supp. 453, 457 n.7 (S.D.N.Y. 1990)
(9 10% confusion was sufficient to demonstrate "meaningful
evidence of actual confusion").
If a claim is literally false, a court may grant relief
without considering whether the buying public was actually
misled.

Novartis, 290 F.3d at 586.

In analyzing whether an

advertisement is literally false, a court must first determine
the unambiguous claims made by the advertisement, and second,

18

whether those claims are false.
can be literally false.

rd.

rd. at 587.

Only an unambiguous message
The Court of Appeals has

explained that a common theme among cases concluding that an
advertisement is literally false is that the "consumer will
unavoidably receive a false message from the product's name or
advertising.

II

at 586.

The Court addresses the plaintiff's

likelihood of success on the merits.
At the preliminary injunction hearing, the Court was
presented with the letter that Mr. Moldoff sent to colleges and
universities seeking public records under different states'
freedom of information statutes (the "For letter
Ex. 44.)

ll

)

•

(See Def.'s

The FOr letter sought copies of any agreements between

the academic institution and CollegeSource that would "grant[]
CollegeSource or the Career Guidance Foundation the authorization
to create and claim a derivative copyright of [the academic
institution's] printed or digital catalog for [2006-2010]

i

limit

the rights of distribution of the electronic version located on
their website; archive the file; add their logo and Terms of Use
to the front of each catalog and charge for access to the
catalog.

II

The letter further explained that the request was

made in connection with "copyright claims filed" in this lawsuit.
rd.
The plaintiff argues this letter constitutes a form of
advertising and that three aspects of the defendant's letter are

19

literally false.

3

First

the plaintiff argues that no copyright

l

claims are asserted in this lawsuit.

Second

l

the plaintiff

argues that it is false to state that CollegeSource is attempting
to preclude AcademyOne

~and

other software providers" from

providing automated student transfer systems.

Third,

CollegeSource argues that it does not claim control of catalogs
on its clients website.

The Court cannot conclude that these

statements are literally false.
First l

although no violation of copyright law is

asserted in this lawsuit

I

such an understanding and description

is a reasonable characterization of this matter for a non-lawyer
to make.

The heart of the violation alleged in this action is

that AcademyOne violated the copyright and disclaimer notice
appended to CollegeSource's catalogs by extracting course
descriptions for its own products. 4

In essence

l

the rights

CollegeSource seeks to vindicate, though styled in terms of

3
The Court does not need to address the defendants'
argument that the letter does not constitute a form of
advertising because the Court concludes that even if the letter
is a form of advertising it is not literally false and there was
insufficient evidence of a tendency to deceive consumers.
l

4
CollegeSource/s "Copyright & Disclaimer Information"
states in part ~CollegeSource® and Career Guidance Foundation
CollegeSource® digital catalogs are derivative works owned and
copyrighted by CollegeSource®1 Inc. and Career Guidance
Foundation. Catalog content is owned and copyrighted by the
appropriate school. While CollegeSource®1 Inc. and Career
Guidance Foundation provides [sic] information as a service to
the publicI copyright is retained on all digital catalogs.
(See
Pl./s Ex. 3.)
1I

20

breach of contract, are very similar to a lay conception of
copyright infringement.

Indeed, the plaintiff has cited to

several copyright cases to support its claim for injunctive
relief and its original cease and desist letter declared
AcademyOne's actions to be a violation of the Copyright Act.5
In addition, Mr. Moldoff testified that his reference
to copyright was meant to refer to CollegeSource's copyright
notice included in its digitized catalogs, not a legal cause of
action.

(N.T. 132:19-133:16.)

The Court concludes that Mr.

Moldoff's statement referring to copyright claims is ambiguous
and cannot be considered literally false.
Second, Mr. Moldoff's contention that CollegeSource is
attempting to prevent AcademyOne and other software providers
from providing automated student transfer systems is ambiguous.
CollegeSource argues that only AcademyOne is the subject of the
lawsuit and thus it is false to refer to "other software
providers."

Although this lawsuit is only brought against

AcademyOne, Mr. Moldoff had reason to believe that CollegeSource
intended to pursue claims against other companies that might
utilize CollegeSource's digitized information based on statements

5
See Pl.'s Mot. at 28 citing Value Group, Inc. v.
Mendham Lake Estates, L.P., 800 F. Supp. 1228, 1234 (D.N.J. 1992)
(copyrighted architectural plans); Apple Computer, Inc. v.
Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir. 1983)
(copyrighted computer programs); FMC Corp. v. Control Solutions,
Inc., 369 F. Supp. 2d 539, 575 (E.D. Pa. 2005) (copyright of
product label). See also Pl.'s Ex. 14 at 2.
21

made at the Postsecondary Electronic Standards Council meeting.
(N.T. 133:18-136:4.)
Third, it was not unambiguously false for Mr. Moldoff
to state that "CollegeSource claims control of the digital
catalogs they collect, even if they reside on your website."
AcademyOne presented evidence that some colleges and universities
either directly posted, or provided links to, CollegeSource's
digitized catalogs that contain CollegeSource's Terms of Use.

In

this way, a university's course catalogs that appear to an
ordinary user to be on the university's website may be subject to
CollegeSource's asserted Terms of Use.
The Court concludes that these statements are either
true, or at least ambiguous.

The Court must next address whether

the letters had a tendency to deceive.

The plaintiff presented

evidence that one institution requested that its catalog be
removed from CollegeSource's collection.

No evidence was

presented for the specific reason of the institution's request.
(N.T. 53:4-14.)

Ms. Cooper also testified that several other

institutions contacted CollegeSource to learn more about the law
suit and expressed confusion.

However, no evidence was presented

regarding how many inquiries were received or if any confusion
was actually caused by the letter itself.
The Court concludes the plaintiff has not shown that it
has a likelihood of success on a claim for false advertising

22

stemming from Mr. Moldoff's freedom of information letters
because the statements are not literally false and the plaintiff
has presented insufficient evidence that the letters had a
tendency to deceive the intended audience.

The Court does not

need to address the defendants' other arguments or the remaining
preliminary injunction factors.

IV.

See Yonkers, 428 F.3d at 508.

Conclusion
The Court concludes that the plaintiff has failed to

satisfy its burden that it will suffer irreparable harm without
the issuance of a preliminary injunction for its breach of
contract and unjust enrichment claims.

The Court also concludes

that the plaintiff has failed to show a likelihood of success on
the merits for its false advertising claim regarding the FOI
letter.

The Court will therefore deny the plaintiff's motion.

An appropriate Order shall issue separately.

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